VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Planning and Environment DIVISION
  planning and environment LIST	vcat reference No. P265/2020
Permit Application no. P893/2019	
CATCHWORDS	
Section 77 Planning and Environment Act 1987; Banyule Planning Scheme; Height; Visual Bulk; Overlooking; Mixed Use – retail and residential; interface between a mixed use and residential zone.    	

APPLICANT	KM Develop Pty Ltd	
responsible authority
reFFERRAL authority	Banyule City Council
The Head, Transport for Victoria (VicRoads)	
RESPONDENTS	Janet and Peter D’Ambrosio, Robyn Roberts, Mark Brasher, Judith Landsberg, Grant Alexander, Richard Sawers, Michael Randell, Jillian and Frank Saccardo	
SUBJECT LAND	1066-1068 Heidelberg Road, 
IVANHOE, VIC 3079	
WHERE HELD	Melbourne	
BEFORE	Megan Carew, Presiding Member
Stephen Axford, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	22-24 July 2020	
DATE OF INTERIM ORDER	30 July 2020	
DATE OF ORDER	4 September 2020	
CITATION	KM Develop Pty Ltd v Banyule CC [2020] VCAT 946	

Order
Amend permit application 
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	Ewart Leaf	
•	Drawing numbers:	TP100C, TP101C, TP102B, TP103B, TP104B, TP105C, TP150C, TP400C, TP401C, TP026C, TP030A, TP900B, TP903B, EFS 1-4 Revision B	
•	Dated:	2 June 2020	

Permit granted
2	In application P265/2020 the decision of the responsible authority is set aside.
3	In planning permit application P893/2019 a permit is granted and directed to be issued for the land at 1066-1068 Heidelberg Road, Ivanhoe in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	To construct a mixed-use development comprising shops and dwellings and to use land for two shops with leasable areas greater than 150m2.
•	To construct a building or construct or carry out works in Design and Development Overlay- Schedule 11.
•	To remove three trees in the Vegetation Protection Overlay- Schedule 3; and  
•	To create and alter access to a Road Zone- Category 1.

Megan Carew 
Presiding Member		Stephen Axford
Member

Appearances
KM Develop Pty Ltd	Mr N Tweedie, SC
Mr S McArdle, Barrister
Instructed by Best Hooper Solicitors
They called the following witnesses:
•	Mr M Negri, Town Planner
•	Mr C Czarny, Urban Designer
•	Mr J Patrick, Landscape Architect
•	Ms C Dunstan, Traffic Engineer
Photomontage evidence prepared by D Flood, Flood Slicer Pty Ltd was tabled.	
For Banyule City Council

For referral authority	Ms A Kellock, Town Planning Consultant, Kellock Town Planning
No Appearance	
For respondents	Ms J D’Ambrosio, in person
Ms R Roberts, in person
Mr M Brasher, in person
Ms J Landsberg, in person
Mr G Alexander, in person
Mr R Sawers, in person
Mr M Randell, in person
Mr Paul Conner, Barrister instructed by Minter Ellison appeared for J and F Saccardo on Day 1.	

Information
Description of proposal	Demolition of two existing residences including all vegetation and construction of a five storey mixed use building over a single basement level, on a sloping site for the purposes of retail at the ground level and residential uses above.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the decision of the Responsible Authority to refuse a permit in relation to Planning Application No: P893/2019.	
Planning scheme	Banyule Planning Scheme	
Zone and overlays	Mixed Use Zone- Schedule 1 (MUZ1)
Design and Development Overlay- Schedule 11 Precinct 1 (DDO11)
Vegetation Protection Overlay-Schedule 3 (VPO3)
Development Contributions Plan Overlay (DCPO)
Abuts a Road Zone- Category 1	
Permit requirements	Clause 32.04-2 – use of land for a shop with leasable area greater than 150m2 in MUZ
Clause 32.04-6- construction of two or more dwellings on a lot in MUZ
Clause 32.04-9- to construct a building or construct or carry out works associated with the shop use in MUZ
Clause 42.02- to remove vegetation (three trees) in VPO3
Clause 43.02- to construct a building or construct or carry out works in DDO11
Clause 52.29 Creation and alteration of access to a RDZ1	
Relevant Planning Scheme Provisions	Clauses 10, 11, 12, 13, 15, 16, 18, 19, 21, 22.02, 22.03, 22.05, 32.04, 42.02, 43.02, 45.06, 52.06, 53.18, 55, 58, 52.29, 65, 71 and 72.	
Land description	The review site is located on the south-east corner of Heidelberg Road and Rose Street in Ivanhoe close to Darebin railway station. The site is generally rectangular in shape with a frontage to Heidelberg Road, a Category 1 (main) road, and a secondary frontage to Rose Street, a residential street.	
Land description	It is occupied by two dwellings. It has an area of 1,738 square metres and a significant fall of approximately 5m from the north-east to the south-west.
Figure 1: Review site

To the east it has a side interface to an existing single storey residential development, while to the south it has a side interface with an existing two-storey apartment development.  There is a narrow drainage easement to the south. 
Opposite the site (on the west side of Heidelberg Road) is recent redevelopment with commercial at ground level and apartments above.
Figure 2 Opposite side of Heidelberg Road
	
Tribunal inspection	27 July 2020	

Reasons
What is this proceeding about?
1	This proceeding concerns an application against Council’s decision to refuse a planning permit application for a proposed five storey mixed-use development on a sloping site on the south east corner of Heidelberg Road and Rose Street, Ivanhoe (Figure 3).
2	The site is located within the designated boundaries of the Ivanhoe Activity Centre, which generally extends between the Darebin and Ivanhoe railway stations. It is in the Darebin Precinct at the south-east end of the activity centre, focussed around the Darebin Railway Station and located alongside Heidelberg Road, a Category 1 (main) road. This section of Heidelberg Road runs approximately north-south and has a significant fall towards the south.
3	A number of four and five storey mixed-use developments have occurred on the west side of Heidelberg Road, close to the station and extending north to opposite the subject site. There are also earlier single storey retail stores addressing Heidelberg Road both to the north and south on both sides of the road. Minimal development has occurred on the east side of the road, although there are some examples such as the development at 1088 Heidelberg Road. 
4	The Ivanhoe Activity Centre has well developed planning controls based upon strategic planning studies, culminating in a Design and Development Overlay- Schedule 11 (DDO11) that applies to both the east and west sides of Heidelberg Road. The overlay contains mandatory height controls and extensive design guidelines that are discretionary relating to front and side setbacks and design detail. The relevant planning controls will be discussed in further detail in the following reasons. 
5	The Applicant submits that the proposed development substantially meets all the controls and guidelines set by the DDO11, with a high quality building that has been designed “in the round” to respond effectively to its varied context. At the hearing, the applicant sought to substitute amended plans altering the form and appearance of the proposal but retained the broad aspects of the overall proposal.
6	The Council and Respondents said the amended plans were only a minor improvement over the application and drawings and maintained their objections. They say that the architectural design is excessively bulky because of its height, setbacks and the use of solid balconies that read effectively as building mass. They say that the proposal fails to meet key setback requirements set by the overlay. Although these setbacks are discretionary, the Council said the failure to provide these in key locations provides an inappropriate response to the residential context, with a building that is too tall and visually overwhelming.
7	There were also concerns about the way the development addresses the immediate neighbours to the east within the residential zone, including potential overlooking. Council conceded that its concerns about overshadowing had now been addressed.
Figure 3 Photomontage (Source: Flood Spicer)

8	The Council and the Respondents also expressed concerns about the limited visibility of the residential entry and the viability of the retail frontage; and concerns about the traffic impacts because of the location of the driveway onto Heidelberg Road.
9	Mr Conner on behalf of Ms Saccardo indicated that they had reached separate agreement with the permit applicant based on the amended plans and requested that the Tribunal consider the agreed conditions should it find that a permit is appropriate. The agreement included two additional plans described as TP-033A dated 20 July 2020 and TP-034A dated 21 July 2020. We required that these plans be circulated to all parties on day 1 of the hearing. We have addressed the position of Ms Saccardo in our reasons below.
10	Based on the submissions and evidence at the hearing, we think the following are the key issues that we must consider:
•	The height and visual bulk in relation to Heidelberg Road and the Rose Street intersection.
•	The height and visual bulk in relation to Rose Street and the transition to the residential areas to the east.
•	Front and side Setbacks and the associated Landscape design response 
•	The integration with the street, including the entry design to the residential units and the extent of retail activity.
•	Amenity considerations including overlooking and visual privacy.
11	We have decided that the proposal is an acceptable planning outcome subject to a number of changes to improve the transition to the existing residential development, and the ground level integration with the Heidelberg Road streetscape. We explain why in our reasons below.
WHAT DOES THE PLANNING SCHEME SAY?
12	The review site is located within the designated boundaries of the Ivanhoe Activity Centre, which has been identified as an area suitable for intensification within the Banyule Planning Scheme. The Ivanhoe Activity Centre is made up of several parts, with the review site located in the southern-most part focussed around an existing Darebin retail strip located on both sides of Heidelberg Road, and near the Darebin Railway Station. 
13	The Ivanhoe Activity Centre is subject to a structure plan referenced at Clause 21.08. Clause 21.08-3 sets out the following for the Darebin Precinct:
Darebin Station and its surrounds will be a vibrant community hub, providing an important link for residents and businesses in the southern part of the Activity Centre. Sites surrounding Darebin station will be sensitively redeveloped to provide for convenience retail, offices and housing. 
Residential development along Heidelberg Road will support the desired streetscape character through the use of setbacks and landscaping. Darebin Station will be redeveloped to provide a high level of amenity, a landscaped public square, on site car and bicycle facilities, and improved pedestrian links and access.
14	In the Ivanhoe Structure Plan, the Darebin Station Precinct has the building form to 15m in height on both sides of the street, with a focal point at the station (see Figure 4).
15	Clause 21.06 identifies the area around Darebin Station as a diversity precinct (Clause 21.06) and the residential areas to the east as areas of incremental change.
16	In addition to the strategic support for the development, the review site comprises consolidated land parcels, fronting the main road and on a corner location within the activity centre. The planning unit is relatively unconstrained, other than for slope and the need to respond to its residential interfaces. 
17	We find that there is strong strategic support for change within the planning framework and for development generally of the scale proposed. We agree with the Council that the Local Policy is well founded in strategic studies and is relatively recent. 

Figure 4 Darebin Station land use and built form plan

18	The review site is included within the Mixed Use Zone where the objectives are to provide for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality and to provide for housing at higher densities. We are satisfied that the proposal for shops at ground level with dwellings above are acceptable in this context. 
19	The zone also seeks a response to neighbourhood character. In this case the future character of this area is driven by the character objectives for the activity centre rather than the residential hinterland which is subject to different planning controls. 
20	Both sides of Heidelberg Road are part of the activity centre and are subject to similar controls within the planning scheme. The overlay recognises that new development on the east side is constrained by the residential interface to the east, whereas to the west the interface is with the railway line through differing setback provisions.
21	We are cognisant that the review site sits at a point of transition between the residential hinterland to the east and the area designated along Heidelberg Road for change. However, the incremental change areas to the east will also be subject to change over time with development of up to three storeys or 11m contemplated.
THE DDO11 PROVISIONS
22	DDO11 sets out design objectives and controls relevant to the activity centre. There is some drafting inconsistency within the schedule to the overlay in relation to land within the Mixed-Use Zone (a residential zone) identified in the evidence of Mr Negri. 
23	Having considered the provisions of the DDO and the structure plan for the activity centre, we find that the specific parameters applicable for the review site are:
•	Built form with a mandatory height of up to 15m is contemplated (plus an additional 1m for sloping sites) with exemptions for architectural features;
•	Buildings will be constructed to site boundaries to Heidelberg Road and Rose Street to a height of 9m with upper levels set back 6m (setback B); 
•	In Precinct 1 (Darebin Station Precinct) the street wall height of new development should be measured from street level.
•	A setback to the residential zone (eastern interface) identified as setback G applies to “shade sensitive interface” of 6m is sought for development up to 9m in height with further height setback an additional 6m; 
•	In setback area G, the ground level setback area should be designed to protect existing trees (where relevant) and provide for additional landscaping. 
•	In setback area G, where sunlight to the secluded private open space of an existing dwelling is reduced, at least 75 per cent, or 40 square metres with a minimum dimension of 3 metres, whichever is the lesser area, of the secluded private open space should receive a minimum of five hours of sunlight between 9am and 3pm on 22 September. If existing sunlight to the secluded private open space of an existing dwelling is less than the requirements of this standard, the amount of sunlight should not be further reduced.
•	Side boundary setbacks (in this case to the southern interface) are setback standard K which seeks that upper levels should be setback to provide opportunities for outlook, amenity, privacy and development potential relative to the abutting property. Buildings in a non-residential zone in Precincts 1 and 5 should be constructed to side property boundaries up to a preferred maximum height of 9 metres above natural ground level. Any part of a building higher than 9 metres should be set back from the side boundary to provide opportunities for outlook, amenity, privacy and development potential relative to the abutting property as outlined in Setback Standard K.
•	An activated and engaging frontage is sought to Heidelberg Road and to Rose Street. This is defined as:
Active and engaging frontage is a ground floor elevation designed to facilitate active visual engagement between pedestrians and building occupants. Activation can be assisted by the extensive use of glazing, doors and windows which open directly onto the street, and the provision of weather protection for pedestrians.
24	We now turn to consideration of how the proposed design responds to the guidance within the planning scheme, DDO11 and to its context at the transition between the diversity area and the residential hinterland.
IS the Built form response acceptable?
Overall height 
25	We are satisfied that the overall building height meets the 16m mandatory height requirements set out in the schedule to the zone. We note that the lift overrun exceeds this. The Tribunal in Aitken Properties Pty Ltd v Hobsons Bay CC [2016] VCAT 1484 found that whether a lift overrun is of such a size or nature or type of construction, or housed in such a way that it should be considered part of the roof is a question of fact in each individual case. We are satisfied that the nature of the overrun in this case is such that it is not part of the roof and should not be included in the calculation of building height. We are also satisfied that the lift overrun is set back sufficiently so that it will not have a significant visual impact, except from a long-distance view.
Visual bulk in relation to Heidelberg Road and the Rose Street intersection
26	The design objectives for the precinct include to ensure that the upper storey elements of new developments are not unduly bulky or visually intrusive and that these taller elements are located so as to enable transition in height to lower scale buildings.
27	The Council submitted that the way the building addresses Heidelberg Road at the corner with Rose Street was not acceptable. They said that while the majority of the building meets or exceeds the DDO11 setback requirements, the design of the balconies which have many solid balustrades and are relatively deep in places, will “read” as built form, contributing to an unacceptable degree of visual bulk. Council also expressed some concern that the planters at level 3 particularly add to the visual bulk of the façade, resulting in a heavy appearance that would be more so if the planting fails.
28	The building meets the setback requirements in the DDO in relation to the Heidelberg Road frontage. However, to Rose Street, it has a greater setback at ground level as it transitions to the residential neighbours to the east, but lesser setbacks to the upper level (4m as opposed to 6m near the corner). The evidence of Mr Czarny was that this was acceptable given the articulation of the building as a whole.
29	Having considered the evidence and submissions, we find that the way the proposal addresses Heidelberg Road and the Rose Street intersection is acceptable, for the following reasons: 
•	Heidelberg Road can be described as a “robust” environment. The parties accepted that traffic is significant, and development to a similar scale has occurred on the west side of the road, opposite the review site.
•	We note that the development immediately opposite is if anything less articulated than the proposed development, which reflects its residential uses with balconies, landscape on structure, and upper level setbacks.
•	The composition of the façade is also articulated along its length, with a central “break” to emphasise the entry point, and a distinct step down towards the south. We find that this is an appropriate response to the sloping site.
•	We are not persuaded that the building would be unacceptably heavy in appearance given that this elevation addresses a busy road, and that the glazed walls to the units are set back behind the property line.  We are confident that the openings to the balconies will provide visual relief that will be further enhanced by the proposed timber underlining of the balcony soffits.  
•	The balconies are themselves articulated, in that there are interspersed cut outs with glazing for the upstand or balustrade. Where the upstand is solid, we accept that the inbuilt planters will soften their appearance with trailing plants. We were satisfied that the appearance even without the planting would be at least as interesting as the developments opposite; as we expect the arrangement of planters is likely to be successful, we are comfortable that the design of the façade is appropriate for the main road context.
•	We note that the planning controls for the east and west sides of Heidelberg Road are identical. Consequently, we are not persuaded that the different context of the west side of Heidelberg Road, where the developments back on to a railway cutting rather than residential uses, has any relevance to the Heidelberg Road environment. We find that, had the planning scheme intended that the east side should reflect its eastern residential interface at the Heidelberg Road frontage, it would have provided different planning controls. Instead, the planning scheme provides for an appropriate interface to the residential zone through specific setbacks on the review site’s eastern boundary. 
•	With respect to the Rose Street intersection, we note that the sites on the opposite corner of Rose Street are also included in the Mixed Use Zone.  As a result, we find that the context for the corner treatment of the review site is anticipated by the planning scheme to be similarly scaled development. 
•	The lesser setback to the corner is acceptable for the upper level given the slope of the land to the south and the transition to compliance to the east.
•	We note that DDO11 identifies a number of sites within the Activity Centre for “corner emphasis” (see Fig 4 above). It would appear this is to draw attention to the location of the railway station, and the review site is not one of them. However, we assess that the design proposed in the amended plans before us provides a relatively restrained emphasis to the corner in accordance with accepted urban design practice and will not limit the opportunity to give emphasis to the nominated corners in future applications.
Frontage to Rose Street
30	There is no setback indicated to Rose Street for the lower three levels within the planning scheme. However, the proposed development has taken its context into account by providing a small ground level setback, transitioning from the corner towards the east that would provide for the incorporation of some planting in raised planter beds. This transitions to the 6m setback in the north east corner. 
31	The detail of the ground level frontage to Rose Street is not clear on the plans. We understand that it is proposed to have a 1.5m high steel picket fence on a plinth, setback with a planter in front. The existing interface is a garage and high colour bond fence which does not contribute to the streetscape (refer to Figure 1).
32	We acknowledge the residents’ concern that at present the lower residential scale of Rose Street extends to the corner, and that the proposed development will cause a significant change in the character of the western end of Rose Street. However, we find that is the intention of the planning scheme, and that an appropriate transition to the residential context is to be provided towards the eastern boundary of the review site. 
33	We are satisfied with the proposed transitional setback, subject to modification to the north east corner of the site as set out below.
Transition to the incremental residential area to the east.
34	The Council and respondents say that the proposed building does not provide an appropriate transition to the established residential area to the east of the site, and partially opposite the site in Rose Street. As noted previously, this residential area is in a General Residential Zone and the planning scheme requires that development in the Mixed Use Zone provides an appropriate transition.
35	Council notes that the setbacks are not achieved in full at the lower levels and that the opportunity for landscape in the setback is limited by the extent of the paved or decked areas. Closest to Rose Street the setback narrows further and the opportunity for landscaping is further reduced by extensive paving that is located above an extension of the basement level. Council was also concerned that the solid balustrades to the upper level balconies also contribute to an unacceptable visual bulk that they say fails to respond appropriately to the residential context.
36	The respondents supported Council’s submissions and further submitted that the upper levels of the building should be reduced by one or more levels to reduce the visual bulk as seen from Rose Street, which they say should remain at a residential scale. The respondents seek a design response which respects the present character of Rose Street. They sought increased setbacks to Rose Street, more landscaping and lower building height. They emphasised the current high level of amenity enjoyed by this residential area and the “quiet and leafy” nature of Rose Street. 
37	The objectives in the DDO include:
To ensure new buildings adjoining residential zones provide a transition in height, setbacks and vegetation in order to protect the visual and acoustic amenity of dwellings and provide opportunities to protect existing trees and plant new canopy trees.
38	An acceptable transition is effectively defined by the Design and Development Overlay (Schedule 11) which provides Setback Standards that are discretionary controls.  The frontage to Rose Street show setback standard “B” (the same as for Heidelberg Road) whereas to the east where the boundary is shared with the GRZ it sets setback standard G – “Shade Sensitive Interface”. This indicates a ground level setback of 6m with a further setback of 6m for any part of the building above 9m.  
39	The applicant notes that the setbacks are discretionary, and that the upper level setbacks are exceeded. They note that the adjacent development at No. 1 Rose Street has an existing single storey garage that extends to the boundary that coincides with approximately half of the distance where the basement intrudes into the recommended 6m setback.  There is provision for a shade tree closest to Rose Street which they say aids the transition at street level. 
40	The 6m setback at ground level to the east is not provided for the full length of the eastern boundary. Generally, where setbacks are less than that recommended it is at the lower level where the two- storey form is similar to the existing form of the one and two storey form adjacent. Standard B17 is generally met along the boundary as set out in the evidence of Mr Czarny, other than for a planter. Figure 5 shows the relationship of the building form to the eastern interface.
Figure 5 Section to Eastern interface 

41	We accept the evidence of Mr Patrick that the space provided for planting along the eastern interface is enough to achieve an acceptable landscape response (see discussion below). However, we find that the single tree (English Oak) provided for in the Rose Street setback is not enough to assist the development to transition to the residential scale of the GRZ Zone in Rose Street. 
42	In the hearing we discussed what changes that could be considered in order to provide more space for additional planting. The applicant agreed that it would be possible to delete the single tandem parking space (car space 12) in the basement to provide additional deep soil planting. Ms Dunstan in giving traffic evidence agreed this parking bay was not necessary in order to meet the parking requirements for the building, which would still be above the minimum standard. It was also agreed that the extent of paved terrace to the east of apartment 1.04 could be reduced to maximise the area for tree planting. 
43	Mr Patrick agreed that with more space, he would be able to provide an additional two trees (pears) which he felt would improve the appearance of the landscaping to the street and provide a greater sense of a “garden” at the point where the review site adjoins the established residential developments in Rose Street. He noted that the oak could be planted at 2m and the pears at 3-4m. He recommended that the front boundary treatment along the Rose Street frontage (shown as planter) have no footings in the deep soil planting location to improve planting outcomes for the Oak.
44	We find that the deletion of car space 12 for more plating will assist the transition from the apartment form to the more traditional house forms at the street level. However, we find that these changes do not go far enough. 
45	We think that the north east corner of the building (Apartment 1.04) should also be further setback to achieve more area for planting in the north east corner.  This would provide a broader garden frontage with opportunity for additional trees in the front setback, in line with the setback of the neighbouring garage.  It would narrow the area presently marked as dining so that the external wall would align with the reduced basement below. (Figure 6). The balcony of the level above could maintain a small cantilever of about 1m. We recognise that this will require a re-planning of this apartment. 
Figure 6 Setback to the north east corner at ground level (thick dotted line) and possible extent of paving (thin dotted line).

46	We are satisfied that the changes to the north east corner of the site will accommodate an improved landscape outcome that will assist the building to integrate with the streetscape. We accept that it will take time for landscaping to establish and have required the larger planting sizes suggested by Mr Patrick for this reason.
47	Ms Roberts expressed a preference for native species, noting that there are some significant Eucalypts within the activity centre context. We are satisfied that the selection of the English Oak over a native species responds to the Character of Rose Street and the street tree plantings (Figure 7).
48	We also note that the shadow projections indicate that overshadowing is generally acceptable, particularly with respect to the secluded private open space (SPOS) to the rear of No 1 Rose Street. We note there is a minor overshadowing of the side setback of No 1 Rose Street that is largely caused by the solid balustrade of apartment 4.03. The deck to this apartment is particularly wide as a result of the building form under, and we note that the upstand of the balustrade is achieved with a continuous planter box. Mr Czarny was of the view that this planter could be moved inboard for much of its length so that the visible upstand would be reduced. We find that this would also assist to reduce the apparent bulk of this part of the building when viewed from the adjacent property and would add to the visual interest when viewed from the street. 
49	With respect to the submissions that the building is too tall to provide an acceptable transition to the residential context of Rose Street, even if compliant with the DDO11, we do not agree for the following reasons: 
•	We note that Rose Street falls significantly from the east towards the intersection with Heidelberg Road. We are persuaded from the photomontage evidence, that this will have the effect of reducing the apparent scale of development on the review site when viewed from the eastern approach along Rose Street. The site view confirmed this impression (refer to Figure 7 and 8).
•	We acknowledge that the outlook from the eastern approach along Rose Street, and from the side windows and rear open space of No 1 Rose Street, will experience a significant change when the proposed development proceeds. However, we find that this is the intention of the planning scheme, which has provided for intensification around Heidelberg Road in proximity to the railway station. While the visibility of the emerging Activity Centre will be greater, this also comes with the benefits of proximity to improved urban amenity.
•	We are satisfied that the changes we have required with enhanced deep soil planting and the reduction in the bulk of the balcony to Apartment 4.03 will contribute to an acceptable transition to the residential context as required by the Planning Scheme.
Figure 7 Photo from Rose Street looking west (Tribunal’s own)

Figure 8 Photomontage from Rose Street

The adequacy of the overall landscape design response
50	New landscaping is important to this proposal, with both Council and residents emphasising the landscape character of the area and the pleasant garden ambiance of Rose Street. We had the benefit of the evidence of Mr Patrick in respect to the landscape response. 
51	Council submitted that the extent of landscaping is not enough to integrate the building into the existing context. In addition to the treatment of the north-east corner discussed above, Council’s key concern related to the interface with eastern boundary, where the space for deep soil planting is limited to an approx. 2.5m wide strip because of the extent of raised paved and decked areas. This provision does not meet the standard D12 at Clause 58 that 10% of the site should be available for deep soil landscaping.
52	Council was also concerned that there is no planting proposed along the southern boundary that interfaces with the existing apartment buildings, acknowledging that this site is also in the MUZ and is also a potential development site.
53	The Respondents agreed with Council, and also submitted that the building should be set back from the Heidelberg Road / Rose Street corner and from Rose Street, to allow more landscaping.  They pointed to the existing development at 1088 Heidelberg Road as demonstrating a more acceptable response to the local character with generous setbacks for trees and shrubs.  They also queried the practicality of the landscape in planters, since most will need to be maintained by individual residents. This could lead to a lot of variability and poor growth.
54	As we have set out above, we are satisfied that the built form response is satisfactory to each interface given the outcomes sought by the planning scheme for this area and the site’s context. The landscape response we find is also satisfactory, subject to the changes we have set out above to the north east corner. We consider that the overall scheme, including the use of planting at all levels will be acceptable in the context of the requirements of Clause 58. Mr Patrick recommended conditions requiring a maintenance plan, irrigation and soil scientist for planters which we have included.
Southern Interface and Equitable Development 
55	Council was satisfied that the southern interface was acceptable, considering the presence of the drainage easement. The evidence of Mr Czarny and Mr Negri was that this was acceptable in terms of both the amenity of existing apartments and future equitable development opportunities.
56	We are satisfied that the setbacks to this interface generally comply with the requirements set out in DDO11 and will provide for both residential amenity and equitable development. We were assisted by details of the adjoining development to the south. We are satisfied that these dwellings primary have an outlook away from the review site, with the interface being more a service area.
57	We questioned the extension of the balconies to the boundary at level 2 (apartment 2.08) given the need to maintain equitable development opportunities. Mr Czarny agreed that this balcony could be setback further from the southern boundary. We find that a setback of 3m would assist future equitable development opportunities to the south. This setback would maintain a small planter return.
58	We also noted at the hearing a difference in the southern boundary wall finish between the development plans and the photomontages. The evidence of Mr Czarny was that this boundary wall to the car park entry should adopt the brick finish as shown in the photomontages, rather than the concrete finish on the plans. We have provided for this in the permit conditions. 
Integration with the Street- the building entry
59	The Council was concerned that the entrance to the shops and residences off Heidelberg Road is not well resolved. They say the entry is too narrow to adequately identify it and is generally undersized. They are also concerned that the retail frontage does not return into Rose Street, and the activation of the streetscape is limited.
60	The Respondents agreed with Council but are also concerned that the proposed retail is unlikely to be successful because the entry points are limited and the entrance to the northern most retail is effectively hidden to the side of the residential entry.  
61	The Applicant noted that Heidelberg Road has a significant fall from north to south, so that providing wide openings to the street is not possible. It also means that the two retail facilities are at different levels, which means that the northern most retail outlet, marked as “Shop 01” on the plans, is set partly into the ground at the Rose Street intersection. However, this is still provided with a glazing return to Rose Street to allow views via half height windows down into the shop. Direct access from the corner would be difficult due to the level difference.
62	We found the presentation of the photomontages by Mr Czarny helpful in demonstrating that the Rose Street return will still provide an effective visual link to the shop for a significant length of the frontage and the proposed landscaping will allow filtered views into the activity. 
63	As a result, we are satisfied that the glazed return into Rose Street provides an acceptable response to the emerging Activity Centre context. We note that as is customary, detailed plans are not provided for the fit out of either shop. These would be the subject of a future application, with additional permits required if a liquor license were involved. 
64	We agree with the Council and Respondents that the entry to the residences and Shop 01 is less than ideal because of the limited width of the opening and the partly concealed entry to Shop 01. Although we expect that the introduction of more residences will assist the vitality of the Activity Centre we think it is important that the shops have as much exposure as is possible.
65	The Applicant noted that the entry aligns with the return in the façade that marks the step down in the building from north to south and agreed it would be possible to broaden the opening to the street to coincide with the upper level recess. This would slightly reduce the floor area of Shop 02 but would achieve a wider opening to the residential entry and open up sight lines to both shops. It could also provide a small trading out area for one of the shops, noting that Shop 2 would need to accommodate the level difference internally. However, this change would be at the expense of an overhanging planter that has been sized to accommodate small trees.
66	We find this change is necessary to improve the visibility of the entry, as described above. We observe that the best signage a café or shop can have is visible trading out, such as café tables under umbrellas or market stalls under shade devices, and we find this would also create a more attractive entry for the apartments, The planter could be retained as a narrow planter similar in detail to the frontage to Heidelberg Road, to permit overhanging small plants, noting that there would be insufficient soil volume to support larger plants.  
67	Ms Roberts also submitted that the access to the internal common dining room was shared with the retail tenancy and that this was not good design. We do not share these concerns and consider this a matter for the architect.
Amenity to the East and South including overlooking and visual privacy 
68	The proposed development has sensitive interfaces to the south where it effectively adjoins the existing apartments at 1052 Heidelberg Road and to the east, where it has a common boundary with No 1 Rose Street including to the rear secluded private open space of this property.
Overshadowing and daylight to windows
69	One of Council’s original grounds for refusal was overshadowing of the Secluded Private Open Space of No 1 Rose Street. This space is to the rear of the house, generally facing south but with an open aspect to the west towards the review site. Council acknowledged in its submission that the amended plans now satisfy the planning scheme requirements.
70	We have noted earlier that there remains some shadow impact to the side setback on No 1 Rose Street. Although this space is not a SPOS, the facing wall contains windows to habitable rooms that could be impacted. We are requiring a change to the upper balcony of Apartment 4.03 in order to reduce the visual bulk of this feature, which will also reduce the shadow impact on the side setback. We are satisfied that overshadowing has been successfully managed in this proposal.
71	Daylight to habitable room windows also meets the requirements of the planning scheme. Ms D’Ambrosio sought lower vegetation along the eastern boundary where opposite the windows to her dwelling but was generally satisfied with the response to the west of the private open space area. The landscape plan shows hedging clipped to 3-4m in height with Blueberry Ash behind. Mr Patrick noted that the Blueberry Ash could be replaced with deciduous trees (such as the pears at the front) where adjacent to the neighbour’s windows. The permit applicant did not oppose a varied landscape outcome and we have required this change.
72	She also sought no tall trees adjacent to the garage (to prevent possums). While we have required additional planting in this location, we are satisfied that the pear species can be pruned if required.
Overlooking
73	In respect to overlooking, Council identified some areas where privacy screening may be required along the southern and eastern interfaces. The evidence of Mr Negri addressed this and we are satisfied that a permit condition can successfully manage overlooking.
74	At the hearing we noted that there is a need for some areas of privacy screening to east facing balconies and decks at ground level along the eastern boundary. The nature of the boundary fencing was discussed at the hearing and was subject to our interim order allowing further submissions on this matter from the neighbour. In response, Mr and Mrs D ’Ambrosio sought a timber paling fence of no higher than 1.8m with lattice (500mm) above when measured from their side of the fence (the higher natural ground level). This was accepted by the permit applicant. Where this may not be enough to comply with overlooking requirements, the screening will need to be positioned at the edges of the decks. We have provided for this in the permit conditions. 
South eastern neighbour (Saccardo)
75	Following negotiations and a settlement with the permit applicant, Mr and Mrs Saccardo did not pursue their objection before this Tribunal subject to several conditions including treatment of the concrete wall on the southern boundary and minor amendments to planters and privacy screening. These changes will improve the visual amenity and privacy to the south and east and we find that they are acceptable.
TREE PROTECTION AND TREE REMOVAL 
76	The proposal includes the removal of three trees (marked as Trees 7, 12 and 15) under the provisions of the Vegetation Protection Overlay- Schedule 3. The parties do not dispute the removal of the trees. 
77	The proposal does seek to protect vegetation on adjoining properties including Tree 25 to the south east. Council accepts that the tree can be retained but considers that there is opportunity to improve the outcomes for this tree by requiring no fill in the south east corner of the site. The evidence of Mr Patrick was that the tree could accommodate fill in this area. On balance, we are satisfied that subject to the tree management plan conditions that this tree can be successfully retained, considering the drain location and the existing outbuilding.
Car park entry, traffic and car parking
78	Ms Roberts described the basement entry as “cavernous” and “uninviting” when viewed from Heidelberg Road. We do not share these concerns. We consider that the entry has been well-designed as an integral part of the building and its location on the southern boundary has maximised the continuous active frontage to Heidelberg Road.
79	Ms Roberts raised concerns about the entry and exit to the site not being limited to left in/ left out. She also raised concerns about the positioning of the basement entry in relation to the crest of the hill to the north of the site and the speed of traffic on Heidelberg Road. The application was referred to the Head, Transport for Victoria (VicRoads) who did not object to the application subject to permit conditions. VicRoads consented to the accessway to the basement being located on Heidelberg Road in the south west corner of the review site. Council’s traffic engineers also support the entry and basement layout. 
80	We give significant weight to the views of the road management authority as to the safety of the entry. In addition, we had the evidence of Ms Dunstan that the entry and basement layout were in compliance with the planning scheme requirements subject to conditions. She noted that the Council condition seeking a pressure pad for the second basement ramp should be limited to exit only.
81	In respect to car parking, the proposal fully complies with the car parking requirements of Clause 52.06. The question as to whether the number of car parking spaces is acceptable is therefore not before us. There is an excess of spaces which allows us to delete space 12 to obtain the additional landscaping in the north east part of the site.
82	On-street parking in this area is already restricted (we note that restrictions apply in Rose Street) and this is a responsibility of Council to balance competing demands of all users of the activity centre.
83	Waste collection is proposed within the basement and we accept the evidence of Ms Dunstan that the truck can manoeuvre acceptably. An updated waste management plan is required as a condition of permit.
ESD
84	The original application was accompanied by a report prepared by Sustainable Design Consultants September 2019. This will require updating. The original BESS score of 52% is acceptable, although does not demonstrate significant thought to environmentally sustainable outcomes. We have required an amended and updated report to reflect the new proposal.
Viability of the proposed Retail Uses
85	Mr Sawer and Ms Roberts raised concerns about the future use of the ground floor shop spaces for other uses. They said the existing shops, particularly the small-scale older shops, already have a lot of vacancies and they expressed concerns for the viability of the proposed new retail. They were also concerned that if retail proved unviable, the shops could turn into licensed venues or clubs that could attract more patrons and lead to parking pressures in the side streets.
86	The permit applicant says that planning is not designed to achieve instant results and that as the Activity Centre builds out, the market for new retail and commercial uses should improve.
87	We have previously found that the entry to the northern retail and residences could be improved and we think this will enhance the viability of the new retail.
88	We also agree that as more residences are added to the Activity Centre, the outlook for retail and commerce should improve. Should over time it became clear that changes would be required to meet the market needs, including any consideration of uses requiring a liquor license, these would require further planning approvals.  
89	The Respondents raised concerns about the potential for window signage that could block views into the shops, as has happened with the liquor outlet on the west side of Heidelberg Road. The Applicant confirmed that no signs are proposed as part of this application and this would be a matter for the future tenants to address. As no signs are proposed before us, we agree with the Applicant that it would be inappropriate to attempt to control future signage through this permit. 
The Single Lift
90	Council raised concerns about the viability of multi-level apartments served by a single lift. The Applicant submitted that the lift proposed was adequate for the purpose and meets the appropriate regulations. They say it serves a relatively low number of units and that a single lift in such circumstances is not unusual. It has been designed with doors on two sides so that it can serve the two sides of the development.
91	We agree that relying on a single lift may not be ideal, with at least some greater potential for disruption to residents. However, we agree it is an acceptable outcome. We consider that the number of lifts will contribute towards the marketability of the project and we do not think we should intervene in this aspect of the decision. If found to be necessary in the future, it could be achieved by an amendment to the permit.
What conditions are appropriate?
92	In determining the conditions of permit, we have had regard to the draft conditions prepared by the Council, the submissions of the parties and to our reasons set out above. 
93	The review site is subject to a Development Contributions Plan Overlay. In response to our interim order the Council provided wording for this condition which was accepted by the permit applicant.
Conclusion
94	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Megan Carew
Presiding Member		Stephen Axford
Member	

Appendix A – Permit Conditions

Permit Application No	P893/2019	
Land	1066-1068 Heidelberg Road, 
IVANHOE, VIC 3079	

What the permit allowS	
In accordance with the endorsed plans:
•	To construct a mixed-use development comprising shops and dwellings and to use land for two shops with leasable areas greater than 150m2.
•	To construct a building or construct or carry out works in Design and Development Overlay- Schedule 11.
•	To remove three trees in the Vegetation Protection Overlay- Schedule 3; and  
•	To create and alter access to a Road Zone- Category 1.

Conditions
Amended Plans
1	Before the development permitted by this permit starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the plans will be endorsed and will then form part of the permit.  The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans prepared by Ewert Leaf, TP100C, TP101C, TP102B, TP103B, TP104B, TP105C, TP150C, TP400C, TP401C, TP026C, TP030A, TP900B, TP903B, EFS 1-4 Revision B dated 02/06/20  received by the responsible authority in relation to this application but modified to show:
(a)	The level 3 floor plan (TP-103B) amended to show the ‘projecting blade’ associated with balcony to apartment 3.05 as shown on the south and east elevations (TP-401C); 
(b)	The concrete wall on the south boundary treated in accordance with TP-033.A dated 20 July 2020 and prepared by Ewert Leaf; 
(c)	The planter box associated with the balcony to Apartment 4.04 be amended in accordance with TP-034.A dated 21 July 2020 and prepared by Ewert Leaf;
(d)	The southern elevation to show a brick finish for the southern boundary wall of the basement entry;
(e)	Setback of the planter and balcony of Apartment 2.08 to achieve a minimum setback of 3m from the southern boundary (maintaining a return);
(f)	Deletion of car space 12 in the basement and a reduction in paving in this area above at ground level to provide additional area for planting.
(g)	Setback the north east corner of the dining room of Apartment 1.04 so that an area of deep soil planting is created that generally aligns with the setbacks of the Level 1 basement below, with a consequential reduction in the extent of paving.
(h)	Setback the north east corner of the balcony and planter of Apartment 2.03 so that it does not cantilever over the deep soil area created in Condition 1(g) by more than 1m.
(i)	Modification of the planter on the Rose Street frontage where to the north of the deep soil area created by Condition 1(g) to minimise the need for footings and a notation that the frontage treatment to Rose Street at the north east corner of the site is to have no footings to accommodate the establishment of the English Oak shown on the landscape plan;
(j)	Widen the opening to the Heidelberg Road entry to the residences and Shop 01 to align with the northern wall of the apartment above (starting with Apartment 1.10), including consequential changes such as returning a narrow planter above and paving and landscaping as appropriate to define a small area that may be suitable for seating or trading out;
(k)	Reduction in the width of the eastern side of the balcony to Apartment 4.03 (but maintaining the planter) where it extends to the south of the southern alignment of the garage on 1 Rose Street by increasing the setback from the eastern boundary by an additional 1m.  
(l)	The terraces/balconies to the western façade to have a maximum dimension of no more than 3 metres from the edge of the dwelling to outer edge of terrace/balcony;
(m)	Demonstration of compliance with standard B22 of Clause 55 of the Banyule Planning Scheme;
(n)	Fencing to the eastern property boundary from the rear of the garage of the adjoining property at 1 Rose Street to be nominated as timber paling no higher than 1.8m when measured from ground level at 1 Rose Street with a 500mm trellis above;
(o)	Plan notations that the security gate will be pressure pad operated for exiting vehicles such that if closed, it will open when any vehicle approaches;
(p)	All sustainable design features indicated in the endorsed Sustainable Design Assessment (SDA) required by Condition 13 of this permit. Where sustainable design features outlined in the SDA cannot be visually shown, include a notes table providing details of the requirements (i.e. energy and water efficiency ratings for heating/cooling systems and plumbing fittings and fixtures, etc.);
(q)	Landscaping and management plan as required by Condition 2 of this permit;
(r)	Any changes required by the waste management plan required by Condition 4 of this permit;
(s)	Location of any required electrical substation;
(t)	Demonstrated compliance with Standard D17 of Clause 58;
(u)	Demonstrated compliance with the minimum dimensions set out in Standard D19 of Clause 58 for all balconies;
(v)	 Demonstrated compliance with Standard D20 of Clause 58;
(w)	Engineering plans showing a properly prepared design with computations for the internal drainage and method for of disposal of stormwater from all roofed areas and sealed areas including:
(i)	The use of an On-site Stormwater Detention (OSD) system;
(ii)	The connection to the Council nominated legal point of discharge;
Please note the Engineering plans must show all protected and/or retained trees on the development site, on adjoining properties where tree canopies encroach the development site and along proposed outfall drainage and roadway alignments (where applicable) and every effort must be made to locate services away from the canopy drip line of trees and where unavoidable, details of hand work or trenchless installation must be provided.

(x)	A schedule of materials, finishes and colours.
Landscape Plan
2	The development permitted by this permit must not be commenced until the amended plans as required under Condition 1, as above, and a revised and updated satisfactory landscaping plan is submitted to and approved by the Responsible Authority.  The revised landscape plan must be generally in accordance with the plans prepared by John Patrick dated 20.06.19 and be prepared by a person suitably qualified or experienced in landscape design and shall include:
(a)	The English Oak in the north east corner of the site to be planted at a height of 2m.
(b)	The provision of a minimum of three additional canopy trees in the north east corner of the site planted at a minimum height of 3m.
(c)	Deletion of the proposed Blueberry Ash along the eastern setback where adjacent to the dwelling (excluding garage) and replacement with a deciduous tree species.
(d)	Plantings within the additional planter box footprint identified in condition 1(c); 
(e)	Details and plans of the proposed irrigation systems; 
(f)	The identification of existing vegetation (which is not intended to be removed), and nomination of vegetation for removal throughout the site;
(g)	Planting within landscaping zones to consist of varying heights and species;
(h)	A drought tolerant planting theme;
(i)	A schedule of all proposed trees, shrubs and ground cover, which includes the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;
(j)	Location and details of paving, steps, retaining walls, water tanks, clotheslines, fence design details and other landscape works including cut and fill.
(k)	Location, details and cross section drawings of all Water Sensitive Urban Design features in accordance with the endorsed Sustainable Design Assessment/Sustainable Management Plan and STORM report, with reference to connection details on the engineering plans.
(l)	A landscape maintenance plan; and
(m)	The specification of soil media for planters.
3	Unless otherwise agreed in writing by the Responsible Authority, the landscaping areas shown on the endorsed plans must be used for landscaping and no other purpose and any landscaping must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
Waste Management Plan
4	Prior to the commencement of the development, an updated Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan be generally in accordance with the plan prepared by Leigh Design Pty Ltd dated 2 September 2019 and must include:
(a)	Dimensions of waste areas. 
(b)	The number of bins to be provided and capacity.
(c)	Details on method and frequency of cleaning and maintenance of waste areas.
(d)	Details of ventilation.
(e)	Details of unwanted goods storage.
(f)	Method of waste and recyclables collection including the need to provide for private services.
(g)	Hours of waste and recyclables collection. 
(h)	Measures to minimise impact upon residential amenity.
(i)	Method of presentation of bins for waste collection. 
(j)	Strategies for how the generation of waste and recyclables from the development will be minimised. 
(k)	Details as to how prospective purchasers will be advised that all refuse and recycling collection for the property shall be provided internally by a private contractor at the expense of the owner of the land.
When approved, the plan will be endorsed and will then form part of the permit and must be complied with at all times. Waste collection from the development must be in accordance with the plan, to the satisfaction of the Responsible Authority.
General
5	The development as shown on the endorsed plans or described in the endorsed documents must not be altered or modified except with the written consent of the Responsible Authority.
6	Unless otherwise agreed in writing by the Responsible Authority, the proposed development must not be occupied until:
(a)	The parking areas shown on the endorsed plans have been constructed to the requirements and satisfaction of the Responsible Authority;
(b)	The garden and landscape areas shown on the endorsed plans have been planted to the requirements and satisfaction of the Responsible Authority; 
(c)	Drainage works have been undertaken and completed to the requirements and satisfaction of the Responsible Authority;
(d)	Driveway, pathway, basement and undercroft lighting is installed in accordance with the relevant Australian Standards.
7	Any air-conditioning or cooling units, condensers and the like located on balconies must be concealed to the satisfaction of the Responsible Authority.
8	All pipes (except down pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.
9	All external materials, finishes and paint colours are to be maintained to the satisfaction of the Responsible Authority.
Car Parking / Access
10	Areas set aside for the parking of vehicles together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plans and must be drained and provided with an all weather seal coat.  The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the Responsible Authority.
11	Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose.
12	Vehicular access or egress to the subject land from any roadway or service lane must be by way of a vehicle crossing constructed in accordance with Council’s Vehicle Crossing Specifications to suit the proposed driveway and the vehicles that will use the crossings.  The location, design and construction of the vehicle crossing must be approved by the Responsible Authority.  Any existing unused crossings must be removed and replaced with concrete kerb, channel and nature strip to the satisfaction of the Council prior to the occupation of the building.  
Sustainable Design Assessment
13	Prior to the commencement of the development, an updated Sustainable Design Assessment (SDA) must be submitted to and approved by the Responsible Authority.
14	All works must be undertaken in accordance with the Sustainable Design Assessment (SDA) prepared and submitted with the application to the satisfaction of the Responsible Authority.  No alterations to the SDA may occur without prior written consent of the Responsible Authority.
15	Prior to the occupation of any dwellings approved under this permit, a statement from the author of the Sustainable Design Assessment report, approved pursuant to this permit, or similarly qualified person or company, must be submitted to the Responsible Authority. The statement must confirm that all measures specified in the SDA have been implemented in accordance with the approved plan to the satisfaction of the Responsible Authority.
Tree Protection / Landscaping
16	Unless otherwise agreed in writing by the Responsible Authority, prior to the commencement of works (including demolition) on the site Tree Protection Zones must be established around Trees ##1A, #1, #2, #3, #4, #5, #19, #20, #25 and #26, where they occur within the subject site. At least 14 days prior to the commencement of works the applicant must provide a ‘Statement of Compliance’ (from a suitably qualified Project Arborist) which must include photographic evidence of the below requirements. This correspondence must be sent to enquiries@banyule.vic.gov.au. Once installed and inspected, the Tree Protection Zones must be maintained until the conclusion of the works to the satisfaction of the Responsible Authority, and must meet the following requirements:
(a)	Extent
Tree Protection Zones shall be provided in the following trees:
(i)	Trees ##1A, #1, #2, #3, #4, #5, #19, #20, #25 and #26 to the extent of the calculated Tree Protection Zone (TPZ) where it occurs within the subject land;
(ii)	Where there are approved works within the TPZ, it may only be reduced to the required amount by an authorised person only during approved construction within the TPZ, and must be restored in accordance with the above requirements at all other times.
(b)	Weed control
		Any weeds located within the Tree Protection Zone are to be removed and the area mulched with 100mm of composted coarse grade woodchips.
(c)	Fencing
(i)	Protective fencing must consist of chain wire mesh panels held in place with concrete feet. Fencing must comply with Australian Standard AS 4687-2007 Temporary fencing and hoardings.
(ii)	The fences must not be removed or relocated without the prior consent of the Responsible Authority.
(d)	Signage
	Fixed signs are to be provided on all visible sides of the Tree Protection Fencing, stating “Tree Protection Zone – No entry without permission from the City of Banyule”.
(e)	Irrigation
	The area must be irrigated during the summer months. 
(f)	Access to Tree Protection Zone
(i)	No persons, vehicles or machinery are to enter the Vegetation Protection Zone except with the consent of the Responsible Authority;
(ii)	No fuel, oil dumps or chemicals are allowed to be used or stored within the Tree Protection Zone and the servicing and re-fuelling of equipment and vehicles must be carried out away from the root zones;
(iii)	No storage of material, equipment or temporary building is to take place within the Vegetation Protection Zone;
(iv)	Nothing whatsoever, including temporary services wires, nails, screws or any other fixing device, is to be attached to any tree.
(g)	Underground Services
	Any underground service installations transecting a Tree Protection Zone of any retained tree must be bored beneath the entire TPZ to a depth of at least 1000mm. Any excavation within the calculated TPZ of a retained tree required for the connection of services must be:
(i)	Undertaken after written approval is received from the Responsible Authority; and 
(ii)	Undertaken by hand or by approved non-destructive techniques suitable in the vicinity of trees under the supervision of the project arborist.
Tree Pruning 
17	Prior to the commencement of works, the project arborist must determine the canopy impact to trees on or adjoining the subject site that are shown to be retained on the endorsed plans, in regards to any pruning required to enable clearance from the proposed Buildings and Works (including any temporary scaffolding requirements), and advise council’s Development Planning Arborists via email to enquiries@banyule.vic.gov.au marked “Attention  - Development Planner” and including the planning application number. Following written approval from the Responsible Authority, all tree pruning must then be carried out by a qualified arborist in accordance with Australian Standard AS4373-2007 Pruning of Amenity Trees, and must be restricted to the removal of no greater than 15% of the total live canopy of individual trees unless otherwise agreed in writing by the Responsible Authority.
18	All tree pruning is to be carried out by a trained and competent arborist who has a thorough knowledge of tree physiology and pruning methods.  Pruning must be carried out in accordance with Australian Standard AS4373 Pruning of Amenity Trees.  Tree pruning is to be restricted to the removal of no greater than 15% of the total live canopy of individual tree unless otherwise agreed in writing to the satisfaction of the responsible authority.
Construction Management
19	Before the development starts, a Construction Management Plan must be submitted to the satisfaction of the Responsible Authority.  Once approved, the plan must be implemented to the satisfaction of the Responsible Authority.  Unless otherwise agreed in writing the plan is to be consistent with the City of Banyule General Local Law No. 1, particularly in relation to:
•	Containment of building sites
•	Dust control
•	Building site refuse
•	Building works hours
•	Construction, use and maintenance of vehicle crossings
•	Occupation of, and obstructions on, roads and Council land 
•	Spoil on roads
•	Unsightly land

Department of Transport  
20	Prior to the commencement of development, amended plans must be submitted to and approved by Department of Transport (DoT). The plans must be drawn to scale with dimensions and showing the following modifications:
(a)	Setback of the proposed gate at the entry to the development by a minimum of 7m into the property from the property line, to provide a passing area at the entrance at least 6.1 metres wide and 7 metres long.
(b)	Clearance of at least 1.0m from any fixed object.
21	The crossover and driveway must be constructed at no cost to and to the satisfaction of the Department of Transport (Head, Transport for Victoria) or the Responsible Authority, prior to the commencement of the use hereby approved.
22	Prior to the commencement of the use of the development, the access driveway, crossover and associated works must to provided and available for use and be:
(a)	Formed to such levels and drained so that they can be used in accordance with the plan.
(b)	Treated with an all-weather seal or some other durable surface.
23	All disused or redundant vehicle crossings must be removed, and the area reinstated to kerb and channel to the satisfaction of and at no cost to the Department of Transport.
Development Contribution Plan Overlay
24	Prior to the issue of a building permit for any buildings or any works approved by this permit, a Development Infrastructure Levy and a Community Infrastructure Levy must be paid to Banyule City Council. The amount of the levy for each charge must be calculated in accordance with Schedule 1 to the Development Contribution Plan Overlay
Time Limits
25	In accordance with Section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:
(a)	The development is not commenced within four years of the date of this permit; 
(b)	The development is not completed within six years of the date of this permit.
(c)	The use does not commence within two years of the completion of the development.
In accordance with Section 69 of the Planning and Environment Act 1987, the Responsible Authority may extend the periods referred to if a request is made in writing:
(a)	Before the permit expires, or 
(b)	Within six months afterwards, or
(c)	Within 12 months afterwards if the development started lawfully before the permit expired.

– End of conditions –